Saturday, February 28, 2009

Attorney General Jack Conway has raised what appear to be his first public questions about legislation to create an investigative arm of the legislature not subject to the open-records law or subpoenas.

“Transparency in government is very important to me,” Conway told Bill Bryant Friday in an interview for "27 Newsmakers," aired today on Lexington's WKYT-TV. ”We’re getting into separation-of-powers issues here, and I have some concerns.”

Conway had not previously voiced an opinion about the identical bills filed by Republican Senate President David Williams and Democratic House Speaker Greg Stumbo. He indicated that he had hoped to meet with them about it but had been unsuccessful. “I would hope they would give me the opportunity to express my concerns,” he said.

Conway indicated he also had problems with the legislature creating an agency that would perform some of the same investigative functions performed by his office. “To have the legislature create an investigative agency when our budget is cut, I have some concerns,” he said. The bills are Senate Bill 188 and House Bill 540.

Stumbo, who preceded Conway as attorney general, said yesterday that his bill will be amended to address some concerns. "A provision compelling the independently elected state auditor and attorney general to cooperate with the agency's investigators is likely to be dropped," Tom Loftus reports in The Courier-Journal. "And he said language exempting its records from release under subpoena or court order is likely to be modified. ... Details will be explained Monday, he said." (Read more) Stumbo's bill is in the House State Government Committee.

On another legislative issue, Conway said 911 emergency calls should remain public records, but parts of the calls that compromise personal privacy, such as "medical records or descriptions," should be redacted from records provided under the Open Records Act. Senate Bill 30, which would restrict access to 911 calls, passed the Senate 27-9 and is now in the House Judiciary Committee.

Wednesday, February 25, 2009

A number of Kentucky and Ohio news organizations have filed an emergency appeal of a judge's order banning all electronic devices from the courtroom in a Campbell County murder trial.

The appeal to the Kentucky Court of Appeals Court followed a ruling by Circuit Court Judge Julie Reinhardt Ward that banned cameras and any live broadcasting, including blogging, from the trial of Cheryl McCafferty.

She is accused of shooting her husband, Robert, in June 2007 in their home in Ft. Thomas. At lest two national network shows, plus many local media outlets, were attempting to cover the trial in Newport.

The ban on blogging and live video from the courtroom would set a dangerous precedent, said WCPO news director Bob Morford.

"If the media said OK to that, we would never be able to cover another court case ever with anything other than paper and a pen," Morford said. "I think the judge is smart enough to know that, so I don't know why, therefore, she would make this claim."

Cincinnati Enquirer attorney Jack Greiner said the ban on still photography didn't seem to relate to any concerns Ward expressed about influencing witnesses' testimony. The ban on laptops and digital recording equipment also unnecessarily inhibits the ability of reporters to do their jobs, he said. Both are tools reporters routinely use to gather news.

The petition filed with the Court of Appeals to allow cameras and blogging can be viewed at KyPost.com.

A bill setting new rules for news media coverage at polling places on election day unanimously passed the Kentucky Senate's State and Local Government Committee on Wednesday and was sent to the Senate floor.

Senate Bill 130 is intended to forestall problems such as polling officials prohibiting journalists from entering polling places or restricting photographers from taking pictures of anything but voters' legs or backs.

"It is not perfect legislation, but it's an improvement over being barred from adequately covering the election process," a statement from the Kentucky Press Association said.

A bill sponsored by the Kentucky legislative leadership to set up a new investigative agency was blasted today by Herald-Leader columnist Larry Dale Keeling.

"This stinker of an idea doesn't deserve passage," Keeling wrote.

"When did Dick Cheney's mind invade Greg Stumbo's body and transform him into David Williams' Mini-Me?" Keeling asked. He also dubbed the bill, introduced last week in both House and Senate, the "KGB" bill, as in "Kentucky (Power) Grab Bill," and likened the proposed new agency to the "Court of the Star Chamber."

The bill would set up a body called the General Assembly Accountability and Review Division, which would investigate other state agencies. Its proceedings would be exempt from open records laws even after investigations had been concluded.

"And just as the Court of the Star Chamber (under England's Henry VIII and other kings) provided a means by which those monarchs consolidated power, GAARD is all about a consolidation of power that would allow the legislative branch of state government to micromanage the executive branch and thumb its nose at the judicial branch ... -- all in the name of 'accountability,' 'transparency,' and that evergreen standard 'eliminating waste, fraud and abuse'," Keeling wrote.

The bill, sponsored by Senate President Williams and House Speaker Stumbo, has drawn sharp criticism from open government advocates and expressions of concern from Gov. Steve Beshear and others.

The Lexington Herald-Leader called a legislative proposal to extend First Amendment rights to high school journalists "common sense and common fairness" in an editorial Wednesday.

"High-school aged people have died in every war this country has fought, been plaintiffs before the United States Supreme Court, run for public office, given birth to babies and paid taxes," the editorial said.

"So, shouldn't they have the freedom to express themselves like the rest of us citizens?"

The editorial noted that for much of America's history, high school students had the same First Amendment freedoms as everyone else, until a 1988 Supreme Court decision took them away. A number of states have restored those rights through legislation, the paper said, endorsing House Bill 43, now in the Kentucky legislature. That bill, in addition to restoring those rights, also preserves the right of high school administrations to censor libelous, disruptive or other types of reports. It also protects schools from legal liability for the content of a school newspaper.

The Kentucky Press Association and the Bluegrass and Cincinnati chapters of the Society of Professional Journalists have endorsed the bill.

Tuesday, February 24, 2009

Gov. Steve Beshear voiced concerns Tuesday morning about the secrecy that would be allowed a legislative investigative agency proposed by the top leaders of the House and Senate.

Beshear said on WHAS Radio that he will talk with House Speaker Greg Stumbo and Senate President David Williams, who are sponsoring bills that would create the General Assembly Accountability and Review Division, which would have power to investigate other state agencies.

“One of the initial concerns I have is with the secrecy part of it,” Beshear told Francene Cucinello, the station’s late-morning talk show host. The bill would exempt the agency from the state's open records law. Its records and investigations would remain a secret even after probes were completed.

“This administration is committed to transparency," Beshear said later in the interview. Cucinello, who goes by her first name, opposes the bill and has spent a good deal of air time doing so.

Her next guest was Al Mayo, Frankfort correspondent for Clear Channel stations, who predicted, “I think there’ll be some changes in this bill.” He said Stumbo’s bill, House Bill 540, is identical to the one filed by Williams, Senate Bill 188.

A bill to create another investigative arm of the state legislature has drawn criticism from the Kentucky Press Association over its secrecy provisions.

The bill, introduced in the House of Representatives by Speaker Greg Stumbo and in the Senate by President David Williams, would set up the General Assembly Accountability and Review Division. The agency would conduct investigations, audits and reviews of all public agencies. The bill provides that proceedings of the new office would not be subject to the state's open record law and requires the cooperation of other state agencies and employees, including the attorney general and the auditor.

"Records addressed in this legislation, in our opinion, should be open to the public," Ashley Pack, general counsel for the KPA, told the Courier-Journal on Monday. "This creates an additional exemption to the Open Records Act, and adding exemptions should be done with great care."

Williams, the Burkesville Republican who is sponsor of SB 188, said the law is needed because the legislature must have the ability to investigate when no one else will. "We can't wait for a separate branch of government … to audit or not to audit."

Williams said the legislature's investigative arm would be treated like a commonwealth's attorney, county attorney or attorney general when it comes to the open records law. That is, he said, investigative records would be exempt.However, current law covers records of the state police and attorney general's office. Records of investigations by those agencies are open, subject to exemptions within the law, when an investigation is closed.

Read the Courier-Journal story at http://www.courier-journal.com/apps/pbcs.dll/article?AID=2009902240417

Monday, February 23, 2009

The start of a Campbell County murder trial was delayed Monday when news media protested a judge's order banning live broadcasting and blogging of the trial.

Campbell County Circuit Court Judge Julie Reinhardt Ward banned cameras and recording devices from the trial of Cheryl McCafferty, who is accused of murdering her husband, Robert McCafferty, 44, in their home in Fort Thomas on June 25, 2007.

Attorneys for television stations WCPO, WLW and WXIX told The Cincinnati Enquirer they would appeal Ward's decision to the Kentucky Court of Appeals on Tuesday. Jill Meyer, an attorney for TV stations, answered questions outside the courtroom. (Enquirer photo by Patrick Reddy)

The trial had garnered the attention of “Dateline NBC” and CBS’s “48 Hours,” both of which had sent cameras and crews to the courthouse in Newport to record the trial for later broadcast. The local stations intended to make the broadcast available on their Internet sites.

The following Open Records decisions were issued by the Office of the Attorney General Feb. 16-19:

1. 09-ORD-031 (Calloway County)Murray-Calloway County Public Hospital, doing business as Murray-Calloway County Hospital, properly relied on KRS 61.878(1)(c)1. in redacting sensitive financial information confidentially disclosed to it by a private medical practice under the terms of a physician recruitment agreement, and KRS 61.878(1)(i) and (j) in redacting typewritten notes and opinions relating to the financial information. The hospital discharged its duty under the Open Records Act by disclosing the total dollars paid to the recruited physician and his private practice under the terms of the agreement.

2. 09-ORD-032 (Ohio County)Ohio County Detention Center violated the Open Records Act by not responding to prisoner’s request for a copy of his medical records. 08-ORD-257 is modified to the extent that it holds no further inquiry to be warranted when a jailer asserts he has no access to his facility’s medical records.

3. 09-ORD-033 (Jefferson County)Acknowledging that KRS 61.870(1)(h) lacks specific parameters for analysis and does not empower the attorney general to compel disclosure of substantiating documentation, the attorney general finds that because it does not derive at least 25 percent of the funds it expends in Kentucky from state or local authority funds, M. A. Mortenson Co. is not a public agency under that provision, and its records are not subject to public inspection.

Nevertheless, this appeal provides the occasion for the attorney general to re-evaluate and modify his interpretation of KRS 61.870(1)(h), which will now be construed to extend application of the act to “bodies” that expend at least 25 percent of the funds they derive from state or local authority funds in Kentucky.

4. 09-ORD-034 (Henderson County) Decision adopting 07-ORD-190; a public agency cannot produce that which it does not have nor does a public agency have to "prove a negative" in order to refute a claim that certain records exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005). In providing requester with name and contact information of the agency in possession of certain responsive documents, the department complied with KRS 61.872(4).

Full texts of the opinions can be found at http://ag.ky.gov/civil/orom/list.htm.

Saturday, February 21, 2009

The two top legislative leaders are backing legislation to create an investigative agency for the General Assembly that would "lack transparency," The Courier-Journal reports. "Its records and reports would be exempt from court subpoenas and the state's open-records laws."

Senate President David Williams, Frankfort's top Republican, introduced Senate Bill 188 on Friday, the deadline for new bills in the Senate for the current sesson. House Speaker Greg Stumbo's spokesman said the Democratic speaker plans to file a similar bill on Monday. In a joint statement yesterday, they said the legislation "recognizes the important 'watchdog' responsibility vested in the General Assembly to ensure tax dollars are spent efficiently and effectively."

The new General Assembly Accountability and Review Division would "conduct investigations, audits and reviews and otherwise monitor the activities of public agencies," the Courier-Journal's Tom Loftus and Stephenie Steitzer report.

"It's horrible," Common Cause Kentucky Chairman Richard Belies told the newspaper. "This is not in the public interest. To have it be able to conduct these investigations without anybody being able to have any type of information about it, I think, goes back to the way government was run in the Middle Ages."

The bill could raise constitutional questions about separation of powers among the branches of government, a strong principle in Kentucky law. SB 188 would require the state auditor, attorney general, cabinet secretaries and other agency heads to assist the Legislative Research Commission "in whatever manner the Legislative Research Commission deems that these officials can be helpful." House and Senate leaders comprise the LRC. It would have to vote for any records of the division to be released.

Auditor Crit Luallen told The Courier-Journal that the new agency could duplicate the constitutionally mandated duties of her office. Attorney General Jack Conway declined to comment. Gov. Steve Beshear's office said it had been busy with budget matters and hadn't reviewed the bill. Spokesman Jay Blanton said, "Over the next few days we'll meet with the sponsors involved to ascertain any questions or concerns they may have and determine how we might address those issues." The bill is in the Senate State and Local Government Committee. (Read more)

Friday, February 20, 2009

Tom Eblen, columnist and former managing editor of the Lexington Herald-Leader,wrote in his column published Thursday, Feb. 19, about pending legislation that would limit the ability of Kentucky educators to censor high-school media.

Eblen, a former student editor at Lexington's Lafayette High School, wrote that high school media don't exist "to train future journalists so much as to train future citizens. In a world awash in information, citizens need to know how to tell good journalism from bad, truth from propaganda, substance from fluff. That requires training — and freedom. And it's an area where Kentucky can lead the way."

House Bill 43, sponsored by Rep. Brent Yonts, D-Greenville, is before the House Education Committee. It would grant student journalists the right to freedom of speech and freedom of the press in school-sponsored media except when their work includes libel or slander, involves an unwarranted invasion of privacy, breaks laws or school policies, or disrupts the orderly operation of the school. It would limit the legal liability of school officials for student-journalist publications or broadcasts, although, as Student Press Law Center Executive Director Frank LaMonte told Eblen, there is no published court decision resulting from a suit filed against a school because of student journalism. The bill would also require school boards in districts that include at least one public high school to adopt a policy on students' freedom of expression.

Seven states have similar laws, which were passed in response to a 1988 Supreme Court decision that said the First Amendment does not protect the free press rights of high school students when the newspaper is part of a sponsored class. The Kentucky Press Association and the Bluegrass and Cincinnati chapters of the Society of Professional Journalists have endorsed the bill.

Wednesday, February 18, 2009

The Lexington Herald-Leader has called a bill to keep 911 tapes from being broadcast "well intended" but a bad idea.

"The legislature should avoid whittling away at the public's access to government records without a very compelling reason," the paper said in an editorial published Wednesday. "Senate Bill 30 ... fails that test.

"Though well intended, SB 30 is a poorly thought out solution to a mostly non-existent problem."

In Kentucky, 911 calls are currently public records, available to reporters and ordinary citizens alike. Senate Bill 30 was introduced by Sen. John Schickel, a Republican from Boone County. He has said he wants to prevent news outlets from attracting viewers by broadcasting the frantic, sometimes final pleas of victims. It has passed the Senate and is now in the House Judiciary Committee.

The Herald-Leader pointed out in its editorial that Kentucky news outlets rarely broadcast 911 tapes.

Monday, February 16, 2009

The following Open Records Decisions were issued by the Office of the Attorney General Feb. 9-13:

1. 09-ORD-025 (Boyd County)Records in the custody of circuit court clerks are properly characterized as court records and are not governed by the Open Records Act. The Attorney General has long recognized that circuit court clerks are not subject to the provisions of the Open Records Act. Consequently, the Boyd Circuit Court Clerk cannot be said to have violated the act.

2. 09-ORD-026 (Graves County)Although the record contains insufficient evidence to conclusively determine whether it violated KRS 61.880(1) in the disposition of a request for records, Graves County School District clearly violated KRS 61.872(1) in referring requesters to its website for a copy of its policies and procedures manual rather than affording them an opportunity to conduct on-site inspection or mailing them a copy of the manual upon prepayment of copying and postage charges.

3. 09-ORD-027 (Franklin County)Insofar as the Cabinet for Health and Family Services initially failed to briefly explain how the cited exception applied to the records being withheld, the agency violated KRS 61.880(1); however, the cabinet provided the investigative records once final action was taken and the records were no longer preliminary. Redaction of social security numbers, dates of birth, home addresses, race and gender information, interview questions and answers, information regarding unsuccessful applicants, and college transcript information on the basis of KRS 61.878(1)(a) is consistent with governing precedents.

4. 09-ORD-028 (Oldham County)City of LaGrange committed a procedural violation of the Open Records Act by not responding to a request within three days. Assuming the request was for a commercial purpose, the city’s fee of $4 for property tax information was reasonable under KRS 61.874(4)(a) as it was used to offset the city’s high cost of acquiring the records. If the purpose was not commercial, however, the fee should not exceed ten cents per page. The hostile attitude of a person requesting records does not allow the agency to impose an unreasonable burden under KRS 61.872(6).

5. 09-ORD-029 (Franklin County)Decision adopting 07-ORD-190 regarding the statutory obligations of a public agency upon receipt of a request for nonexistent records and those which it does not possess; a public agency cannot produce that which it does not have nor does a public agency have to "prove a negative" in order to refute a claim that certain records exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005). In providing the requester with the name of the custodial agency, the Kentucky State Police substantially complied with KRS 61.872(4).

6. 09-ORD-030 (Franklin County)Because requested investigative records related to an ongoing collateral attack on a criminal conviction, in which the requester was seeking to obtain post-conviction relief from the underlying conviction, which was therefore not final for purposes of the Open Records Act, the Kentucky State Police properly denied requests under authority of KRS 61.878(1)(h) and KRS 17.150(2).

A circuit court judge has ruled in favor of an Oldham County magistrate suing his own fiscal court for refusing to reveal the name of a company that donated $100,000 to the county. The judge also ruled the county held an illegal secret meeting and ordered it to publish a "clear record" of what it had done.

Judge Karen Conrad fined the fiscal court $2,600 plus attorney's fees in the case, an "infrequent but not unheard of" action, according to the state attorney general's office.

A similar case involving the city of LaGrange, which also received a $100,000 donation from the same company, ended when city officials agreed to reveal the name of the donor, George Rawlings, owner of the Rawlings Group, an insurance services company located in LaGrange.

The controversy began a year ago when Rawlings gave the money to the city and county under condition that the donations remain anonymous. Magistrate Scott Davis filed an open records request with Oldham County Judge-Executive Duane Murner but was refused. Davis and local activist Dewey Wotring, who runs a website named OldhamCountyWatchdog.com, asked the attorney general for a ruling. The attorney general's office first ruled against the two, then in two later opinions ruled that both the fiscal court and the city had violated open records laws.

When Murner was quoted as saying he would defy the attorney general's rulings, the two filed separate cases in the circuit court. Judge Conrad is expected to rule in Wotring's case shortly.

Both Wotring and Davis said in interviews that they were concerned that the donor might have been trying to influence or seek benefit from the county. Wotring said he would continue to investigate the donations because the Rawlings Group is involved in several pending land transactions in Oldham County.

Judge-Executive Murner said that he was disappointed by the ruling but that he was "not too beat up about it." He said he would comply with the requirement for an accounting of the secret meeting, but that "I don't think we have any notes from it. We'll have to do it by recollection."

Friday, February 13, 2009

A bill setting specific rules for the news media to cover election-day activities at voting places was introduced Friday in the state Senate. The bill has the agreement of the Kentucky Press Association, the Kentucky Broadcasters Association, the state Board of Elections and its chairman, Secretary of State Trey Grayson, according to KPA.

Senate Bill 130 was introduced by Sen. David Givens, R-Greensburg, in an attempt to prevent problems that hindered journalists in the 2008 election. Some officials prohibited access to voting rooms and others prohibited access within 300 feet of polling places, a KPA statement said.

"The legislation, while not perfect, would allow photographs of voters without limiting to profile shots or shots of 'legs and feet' as some were restricted in this last election," KPA said. "It would also allow interviews in the building except in the voting room or a voter who is already in line to vote."

The bill would also require journalists to carry either a state police press pass or authorization from the county board of elections. Current law does not authorize news media to be in the voting area. Even though a state attorney general's opinion says journalists have the right to be there, many election officials deny access, KPA said. The bill says journalists "shall not film the identity of voters in the voting room without first requesting and gaining the permission of each voter." The full text of the bill can be found at http://www.lrc.ky.gov/record/09RS/SB130.htm.

Thursday, February 12, 2009

A bill to keep 911 emergency calls from being broadcast on radio or television, or posted on Web sites, passed the state Senate this afternoon, 27-9. It is expected to face a tougher time in the House.

One of those voting against Senate Bill 30 was Sen. Kathy Stein, D-Lexington. She said that as a prosecutor of domestic-violence cases, she had found 911 tapes very useful because "victims of domestic violence are very reluctant to come to court and name the person who perpetrated that." She said the recordings show "the terror in her voice." Speaking of current prosecutors, she said, "I'm very fearful it might make them hesitant to use those tapes" because "other persons would be able to record those surreptitiously."

In Kentucky, 911 calls are currently public records, available to reporters and ordinary citizens alike. The bill passed with both floor amendments, mentioned in previous blog posts.

A bill to require candidates for statewide office to file campaign finance reports more frequently before an election, and to file them electronically, has passed out of a Senate committee. It is expected to be passed quickly by the full Senate. Similar or identical measures passed the Senate in 2007 and 2008 but failed to receive a vote on the House floor.

Senate Bill 62 would require statewide candidates to file a financial report of their campaign receipts and expenses 60 days before an election in addition to the reports currently mandated 32 days and 15 days before an election.

Secretary of State Trey Grayson noted in a release that Kentucky has been downgraded again by the Campaign Disclosure Project in its ranking of states with the best campaign finance filings. The release said Kentucky placed in the top 10 in the ranking as recently as 2004 but has fallen to 21st place because it does not require electronic reporting.

The bill, sponsored by Sen. Damon Thayer, R-Georgetown, would also relieve broadcasters of a requirement to file reports during gubernatorial campaigns, a step the Kentucky Broadcasters Association has sought for many years. Gary White, president and CEO of KBA, explained the provision was designed to enable the Registry of Election Finance to verify campaign spending reports of candidates who accepted public financing. That law has since been repealed. For a full text of the bill, go to http://www.lrc.ky.gov/record/09RS/SB62.htm.

Wednesday, February 11, 2009

The Cincinnati Chapter of the Society of Professional Journalists, which represents journalists in Kentucky as well as Ohio, has declared its support for a bill in the Kentucky House to extend First Amendment rights to high school students.

"We believe that a free and uncensored press is essential to the vitality of American democracy," the group said in a statement issued yesterday. "We believe that all journalists, regardless of age, should be able to practice their craft openly, freely and without fear of retribution or censorship."

The Bluegrass chapter of SPJ endorsed House Bill 43 in December. "SPJ believes you can't start young people's understanding of their rights -- and responsibilities -- as citizens too early," SPJ Bluegrass board member Ken Kurtz told the KOG Blog. Noting that school officials have often tried to censor student papers on issues of importance to them, Kurtz added: "Censorship and freedom are opposites. HB 43 will support freedom for young journalists - the future of our profession." The Louisville SPJ chapter has not commented on the bill. Other journalism groups, including the Kentucky Press Association and Kentucky Broadcasters Association, have endorsed it.

The bill, introduced by Rep. Brent Yonts, D-Greenville, is titled "An act relating to high school newspapers." It would require school boards in districts that include at least one public high school to adopt a policy on students' freedom of expression. The bill also limits the legal liability of school officials for student journalist publications or broadcasts. It would grant student journalists the right to freedom of speech and freedom of the press in school-sponsored media except when their work includes libel or slander, involves an "unwarranted invasion of privacy," breaks laws or school policies, or disrupts "orderly operation of the school." It is in the House Education Committee.

Tuesday, February 10, 2009

A bill to keep recordings of 911 emergency calls secret is still awaiting a floor vote in the state Senate, following a floor amendment by the sponsor, Sen. John Schickel, R-Union (Boone County). His amendment would change references to "tape" in the bill to "recording," presumably reflecting the fact that many if not most 911 recordings are now stored on digital media, not tape. It would also change an apparently mistaken reference to laws governing inspection of records. To read the amendment, click here. To read the current version of the bill, Senate Bill 30, click here.

Earlier, Sen. Ray Jones, D-Pikeville, filed a floor amendment to allow attorneys to get a copy of 911 recordings by subpoena rather than by court order, as the bill would require. For the Web page that tracks the bill, click here. The bill is expected to pass the Senate but face a more difficult time in the House of Representatives.

As the bill to ban public airing of 911 calls in Kentucky heads for passage in the state Senate, perhaps today, it gets national notice from Princeton native Al Tompkins, group leader for broadcast and online journalism at The Poynter Institute and a member of the Kentucky Journalism Hall of Fame. "It's a bad idea," Tompkins says, and explains why. But he also takes the topic beyond the legislative and legal realms into the ethical, where we think it belongs.

Supporters of the bill say they're motivated by compassion for victims and their privacy. Those are factors journalists should consider before broadcasting 911 calls or posting them on Web sites, Tompkins writes in today's "Al's Morning Meeting" on the Poynter site: "One reason we may be seeing this kind of legislative blowback is because of the misconception that journalists only use 911 calls to make stories more sensational. My Poynter colleague Bob Steele and I wrote ethical guidelines for when and how to use 911 calls on the air and online."

That process starts with questions: "Does using the call help better tell the story in a way that is not sensational? Can the 911 tape illuminate broader issues about the 911 system and its effectiveness? Can using the tape help critically examine the 911 system or help illustrate how effectively the system works? Other concerns include the age, mental capacity, community prominence and situational stress of the caller, and the potential impact on the caller and family." Tompkins and Steele offer many other questions and considerations. For their full set of guidelines, click here. A click on that link could help you make a better decision -- and perhaps, if this bill fails, avoid providing ammunition for similar measures in the future.

Monday, February 9, 2009

The following Open Records Decisions were issued by the Office of the Attorney General Feb. 3-6, 2009:1. 09-ORD-020 (Bullitt County)Where City of Mt. Washington e-mails subject to the Open Records Act were stored on privately owned servers to which City no longer had access, a records management issue was raised for the Department for Libraries and Archives. As to City e-mails still under the City’s control, the City did not establish an unreasonable burden posed by producing the City’s correspondence with certain individuals, and to the extent that those e-mails were not produced, the City violated the Act. A tape personally owned by the city clerk and used for preparing the minutes of a meeting was not a public record, as established in prior Open Records Decisions.2. 09-ORD-021 (Boone County)Office of the Boone County Sheriff violated Open Records Act by charging unsubstantiated copying fees of 20 cents per page for redaction and color copies and violated the Act procedurally by failing to provide a detailed explanation for delay in excess of three days.3. 09-ORD-022 (Franklin County)Cabinet for Health and Family Services, Office of Inspector General, violated KRS 61.880(1) in failing to cite the statutory exception authorizing partial nondisclosure of requested investigative records and explain the exception's application to the records withheld. On appeal, OIG properly invoked KRS 61.878(1)(k), incorporating confidentiality provision found at 45 C.F.R. § 2.2(3), in denying request for investigative report generated by the OIG under its contractual relationship with the Centers for Medicare and Medicaid Services.4. 09-ORD-023 (Kenton County)Conflicting evidentiary record precludes a conclusive determination that Northern Kentucky Independent District Board of Health violated KRS 61.880(1) in failing to respond to open records request. The Board otherwise complied with the Act by disclosing all existing responsive records in its possession to the requester.5. 09-ORD-024 (Harlan County)Decision adopting 09-ORD-018, and holding that City of Cumberland violated KRS 61.880(1) in failing to respond in writing, and within three business days. The Open Records Act contains no requirement that the requester "check back" to determine if his request will be honored.

Thursday, February 5, 2009

A bill to keep 911 emergency calls from being broadcast on radio or television, or posted on Web sites, sailed through the state Senate Judiciary Committee on Thursday, heading for likely easy passage on the Senate floor.

“We’re not even going to fight it on the floor,” said David Thompson, executive director of the Kentucky Press Association, which opposes the bill. KPA and other opponents are already preparing to oppose the bill in the state House, where they believe they have a better chance of blocking it, he said.

The House is controlled by Democrats and the Senate by Republicans. All six Republicans on the Senate committee voted for the bill, with two Democrats abstaining. Two other Democrats were absent. "We may have lost this battle but we are still confident that we can win the war," said Gary White, executive director of the Kentucky Broadcasters Association, "Once the legislation moves to the House it should lose its steam."

Republican Sen. John Schickel of Northern Kentucky, the bill's sponsor, told his colleagues that he believes broadcast stations often use 911 tapes to sensationalize coverage of tragic events. His bill would prevent release of the actual tapes, but allow transcripts. "Too often, we hear victims of violent crime and other tragic circumstances being aired on our national and local media, further adding to their victimization," Schickel told the committee.

Opponents such as the KPA and KBA argued the bill would infringes on constitutional protection of a free press. Nancy Cox, an anchor for Lexington's WLEX-TV, told the panel, "A free press is not always convenient. A free press is not always comfortable. But it is always necessary in a democracy. I understand the good intentions behind this bill. I don't argue with that at all. But I need you to know that we in the media have good intentions as well, by and large."

The revised bill would prohibit broadcasting of 911 recordings, but allow release of transcripts and allow reporters to listen to recordings to verify the accuracy of the transcripts. However, it would not allow the release of the recordings themselves without permission of both the person calling and the agency recording. "The bill allows emergency services to redact all identifying information (name, address, phone number) so unless you can recognize the voice you will not know who to contact to request permission to broadcast the audio on your station and or website," White said in an e-mail.

State police and officials of the 911 call center in Lexington testified Thursday in the bill's favor. Attorney General Jack Conway recently ruled that the call center improperly withheld recordings of calls requested by local firefighters. "The proponents played up the 'sympathy' angle," White wrote. "However, they could not produce one single instance in which the broadcast of a 911 call, by a Kentucky station, was detrimental to the caller or other parties involved."

In Kentucky, 911 calls are public records, available to reporters and ordinary citizens alike. According to a partial survey by KPA, 911 calls are public records in Arkansas, Georgia, Iowa, Michigan, Montana, Nevada, New Jersey, New Mexico, Ohio, Oklahoma, Texas and Virginia. They are not public records in Mississippi, Missouri, New York and South Dakota. Transcripts only are available to the public in Arizona. The calls are not public until after an investigation is complete in Alabama, Indiana, Kansas, Maryland, Oregon, Tennessee and Washington.

The Kentucky Broadcasters Association issued an "urgent call to action" Wednesday on a bill in the state legislature to make recordings of 911 calls secret. The bill was scheduled to be discussed and voted on in committee Thursday. Here is the text of the call:

The Kentucky Legislature is considering a Senate Bill that would prohibit Radio and TV stations in Kentucky from airing recorded 9-1-1 calls. Tomorrow (Thursday, Feb. 5) morning at 10 a.m. the Senate Judiciary Committee will discuss and vote on the proposed bill. The KBA board of directors is on record opposing this proposed action. Your help is needed to fight Senate Bill 30. The first step broadcasters should take is contacting the committee members listed below. If any of these Senators represent your district please contact their office immediately and tell them "You oppose SB-30". Even if you are not represented by these Senators please call each one and voice your opposition. Also, contact your state Senator and Representative and encourage them to oppose this Bill. To contact legislators call (502) 564-8100. Ask for the Senator and Representative you wish to speak to. You will most likely be asked to leave a message. Give your name, city and call letters and the message that you are opposed to SB-30."

Wednesday, February 4, 2009

Kentucky Attorney General Jack Conway welcomed the Kentucky Open Government Blog to the continuing struggle for transparency in government. Conway said in a formal statement issued by his office:

"Some thirty-five years ago, Kentucky's lawmakers demonstrated a commitment to ensuring open government by enacting the Open Meetings Law, declaring that 'the formation of public policy is public business.' Two years later, those lawmakers reaffirmed their commitment by enacting the Open Records Law, declaring that 'free and open examination of public records is in the public interest.' Kentucky's courts subsequently implemented this legislative mandate by ruling that these laws 'were enacted for the public benefit' and 'exhibit a bias favoring disclosure.'

"Through the Open Meetings and Open Records Laws, Kentucky's citizens enjoy unique insight into the operation of state and local government. Kentucky's lawmakers assigned a special role to the Office of the Attorney General in ensuring open government. Since 1976, it has been our statutory duty to provide a forum for resolution of disputes arising under the Open Records Law (and, since 1992, under the Open Meetings Law) between Kentucky's citizens and the public agencies that govern them. In resolving these disputes, we are guided by the legislative mandate and judicial interpretation, both favoring openness. As Attorney General, it is my duty and privilege to promote the ideal articulated by Justice [Louis] Brandeis: 'Sunlight is said to be the best of disinfectants; light the most efficient policeman.' We welcome your voice in the ongoing struggle to ensure transparency in government."

Monday, February 2, 2009

A freshman state senator who wants to keep news media from broadcasting 911 calls says he is rewriting his bill to satisfy some objections from news organizations, but media lobbying groups say the changes mentioned so far won’t eliminate their opposition.

Republican Sen. John Schickel is a former U.S. marshal and Boone County jailer who says his Senate Bill 30 was inspired by hearing and seeing broadcasts of doomed callers. "It breaks my heart when I hear people, sometimes saying the last words they will ever say, being broadcast on radio and television," Schickel told the Lexington Herald-Leader recently.

Schickel said in an interview with the KOG Blog that he couldn’t recall whether he had heard any such calls on Kentucky stations, but said “I’ve heard alarming things on Kentucky stations,” such as a woman screaming and throwing her children out a window. But he couldn’t say which station, and acknowledged that he might have heard that on a Cincinnati station that serves his home Northern Kentucky or a cable television channel.

“I’m not saying all Kentucky stations do” air such calls, he said. “A lot of them don’t.” Earlier, he said, “Kentucky does exercise more discretion. We have better Southern manners over here.” But he added, “I don’t think that makes the bill unnecessary,” partly because out-of-state stations can obtain 911 recordings and broadcast them to Kentucky audiences. “It’s citizens asking their government to protect them at their most vulnerable time,” he said.

Under the only version of the bill that is public, a police agency could not release a recording, and a court could not release a transcript, without "written permission of the person making the communication and any person who is the subject of the communication." It would also require redaction in transcripts of "personal identifying information, medical information, communications between an agency and a caller relating to medical information, or similar information from the information released . . . information that may hamper or compromise an investigation by a peace officer or law enforcement agency or a fire department [and] information that might tend to prejudice a defendant or potential defendant in a criminal proceeding." Recordings could be released to parties in criminal and civil cases.

Schickel said he is working on a committee substitute bill “to protect First Amendment rights.” He said the new version would allow journalists to seek and get such orders – or even listen to the recordings and make their own notes. He said that would provide the accountability that the Kentucky Press Association and Kentucky Broadcasters Association say is the reason 911 calls need to remain public records.

Schickel said he added the ability to listen to a recording to his working draft of the bill after press-association lobbyist Ashley Pack told him that journalists need the ability to verify that transcripts are accurate. But at its annual convention Jan. 22-23 in Louisville, the KPA Board of Directors took a stronger stand, noting that their newspapers might feel a need to post the recordings on their Web sites. That put the newspapers essentially on the same page as the broadcasters, who want unfettered access to the recordings.

The Kentucky Justice Association, formerly the Kentucky Academy of Trial Attorneys, also opposes the bill. Leigh Ann Thacker, the contract lobbyist for the broadcasters, said that as far as she knows the only lobbies for the bill are law-enforcement groups. The bill is in the Senate Judiciary Committee, which is scheduled to meet at 10 a.m. Thursday, Feb. 4.

Attorney General Jack Conway reiterated last month that 911 calls are public records. Ruling Dec. 18 in an opinion sought by the Lexington Professional Firefighters, Conway said the Lexington-Fayette Urban County Government had improperly refused the union’s request for recordings of certain calls and that transcripts were not enough. The county’s Enhanced 911 office cited privacy as its reason, but Conway wrote, “With the exception of the caller’s name and identifying information, the public interest in regulation is superior to the caller’s privacy interest in the contents of the telephone call.” Conway referred to a similar decision his office earlier this year. Attorney general's opinions have the force of law in open-records and open-meetings matters.

The Kentucky Open Government Blog is jointly sponsored by the Scripps Howard First Amendment Center and the Institute for Rural Journalism and Community Issues at the University of Kentucky School of Journalism and Telecommunications, and Kentucky Citizens for Open Government. Our mission is to monitor and report on First Amendment and open government issues in the state. "A democracy requires accountability, and accountability requires transparency," President Obama declared on his first day in office. He also quoted the late Justice Louis Brandeis, left, a Kentucky native: "Sunshine is the best disinfectant." We agree. A free and active press is the best guarantor of that transparency. Frequently, the battle to maintain it takes place not in Washington but in places like the town of Oak Grove, where the Kentucky New Era newspaper of Hopkinsville battled police officials to report on dangerous high-speed chases (photo by Danny Vowell of the New Era); or in the jurisdiction next door, where the Todd County Standard published a transcript of a 911 call in which the sheriff tried to get himself out of a jam in another county; or in Lexington, where simple but thorough reporting on public expense-account records by the Lexington Herald-Leader turned up egregious misconduct by airport officials, and prompted new attention to the use of public money by other government officials. We will be featuring such effective reporting on First Amendment and open government issues, as well as legislative and judicial actions across the state. We welcome all comments and contributions.

The following Open Records/Meetings Decisions were issued by the Office of the Attorney General on January 26-30, 2009 (for complete texts go to the Links of Interest below):

1. 09-OMD-014 (Butler County)

Butler County Fiscal Court violated the Open Meetings Act by failing to adhere to notice requirements for special meetings codified at KRS 61.823 in the conduct of its budget committee's special meetings. Conflicting evidentiary record precludes conclusive determination whether Fiscal Court violated KRS 61.810(2) in conducting a series of less than quorum meetings, but if such conduct has occurred, or is occurring, it must cease.

2. 09-ORD-015 (Jefferson County)

Louisville-Jefferson County Metro Revenue Commission properly relied on KRS 67.790(8) and KRS 131.190(1), incorporated into Open Records Act by KRS 61.878(1)(l), in denying request for information appearing on IRS Form 1099 submitted by a named company to the Commission for purposes of collection of occupational license tax.

3. 09-ORD-016 (Franklin County)

Because the Transportation Cabinet has not received, and therefore does not possess any complaints that are responsive to initial request as framed, the Cabinet did not violate the Act in denying the request; a public agency cannot produce nonexistent records or those which it does not possess, nor is a public agency required to "prove a negative." In the absence of a prima facie showing that responsive complaints exist in the possession of the agency, its denial must be affirmed in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005). With regard to "internal complaint referrals" currently being investigated by the Cabinet's Office of Inspector General, which may be responsive, the Cabinet properly denied access on the basis of KRS 61.878(1)(h), having ultimately demonstrated the harm that would result from premature disclosure.

4. 09-ORD-017 (Jefferson County)

E-mails protected by attorney-client privilege were exempt from disclosure under KRS 61.878(1)(l) notwithstanding that they related to the requesting University of Louisville employee.

5. 09-ORD-018 (Harlan County)

City of Cumberland violated KRS 61.880(1) in failing to respond to open records request in writing and in postponing requester's access to operational and financial records owning to the city clerk's absence.

6. 09-ORD-019 (Montgomery County) City of Jeffersonville cannot produce for inspection a nonexistent record nor does the City have to "prove a negative" in order to refute a claim that a certain record exists under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005); however, the City's response was deficient insofar as the City failed to affirmatively indicate whether the requested ordinance exists.